Wheeler v. Thomas , 67 Conn. 577 ( 1896 )

Andrews, C. J.

The complaint in this action claimed to recover the balance due on a contract. The answer admitted the contract and the balance as stated in the complaint, but alleged an accord and satisfaction, viz, that one Wallace W. Ward was on the 16 th day of May, 1890, indebted to the defendant in a greater sum than the amount due on said contract, which debt the defendant on said day assigned to the plaintiff, and the plaintiff accepted the same in full payment and satisfaction of the balance due on said contract. This assignment and acceptance the plaintiff denied. There was a trial to the jury upon the issue so formed and the plaintiff had a verdict. The defendant has appealed.

It appears that the only witness before the jury, other than the parties themselves, was the said Ward, who was called by the defendant. The court finds that since the suit was brought, Mr. Ward had had a serious illness, had suffered a paralytic shock, and that his mind and memory were very greatly impaired.

There are ten reasons of appeal. Nine are from rulings in respect to the admission of evidence. And of these, the decision of the court upon the first, fourth, fifth, sixth and eighth, are so clearly correct that no comment is necessary.

The second and third reasons really present but one error. There was an error in point of form in the answer given by the witness Ward; but under the circumstances disclosed in the case it was within the discretion of the judge to allow the answer to stand. Besides, no possible harm could have been done to the defendant.

The seventh reason is that the judge erred in admitting certain testimony of the plaintiff concerning an order given by him upon the defendant to The J. Gibbs Smith Company. The evidence was admissible, because it tended to show that at that time the * defendant made no claim that he had paid the plaintiff the balance due on the contract, by an assignment to him of the Ward debt. The evidence showed conduct by the defendant inconsistent with the claim he was making in court.

The ninth reason of appeal was this : The defendant had called Mr. Ward as a witness and he had testified to the state of the account between himself and the defendant. The defendant sought to show that Mr. Ward had, since giving his testimony, made a statement out of court respecting that account entirely contrary to the testimony he had given. This was ruled out, and we think, properly. The evidence of what Mr. Ward had said out of court was offered to show the real state' of the account between himself and the defendant. For that purpose it was not admissible. As to that fact it was hearsay. It was admissible, if at all, only for the purpose of discrediting Mr. Ward as a witness. The rule is very strict that a party may not directly discredit his own witness; although he may show a fact to which the witness has testified to be different from what the witness has stated.

The tenth reason is that the judge erred in various particulars in his charge to the jury. So far as these relate to comments on the testimony, they were fully warranted by many decisions of the court. Setchel v. Keigwin, 57 Conn., 478, and the cases there cited. Butte Hardware Co. v. Wallace, 59 Conn., 336.

It is strenuously argued that the judge misinstructed the jury in saying to them that there was no evidence that Ward knew that he owed the defendant the $319. The remark, taken by itself, would seem to be somewhat objectionable; but when read in connection with what the judge said before and after, it means that there was no evidence coming from Mr. Ward, who had been called as a witness before them by the defendant, that he knew that he owed the defendant the sum named. Read in this way the remark was perfectly proper. Collins v. Richmond Stove Co., 60 Conn., 356. The advice to the jury that it was their duty to try to agree, was not erroneous. State v. Smith, 49 Conn., 376.

There is no error.

In this opinion the other judges concurred.